United States v. Shrum, (10th Cir. 2018)
Walt Shrum called 9-1-1 to report his wife had suffered a seizure and lost consciousness. He told the emergency dispatcher his wife may have overdosed on the prescription drug Adderall. The two responding police officers administered CPR until EMS personnel arrived. Shrum accompanied his wife to the hospital, where she died a short time later.
While Shrum was at the hospital with his wife, an officer “secured” their residence. An investigator went to the hospital and asked Shrum to accompany him to the police station. After several hours of interrogation, Shrum gave the investigator written consent to enter his residence to check for his wife’s medication. The medical examiner had requested the medication be brought to the autopsy, which was scheduled for that afternoon.
The investigator told Shrum, “I’m gonna go ahead and hold onto your house as a scene, okay, until I get done with the autopsy.” Shrum complied and accompanied the investigator to the house, but was not allowed to enter. At some point, he asked to go inside to urinate but was forced to urinate outside near where others were gathered.
The investigator took a number of photographs of the interior and sometime later noticed one of the photographs showed ammunition in a closet. The investigator checked and discovered that Shrum was convicted felon. Based on that information, the investigator obtained a search warrant for the house which revealed a loaded shotgun and rifle, additional ammunition, pipes with residue, and methamphetamine.
The Supreme Court has previously held there is no exception to the Fourth Amendment rules for murder scenes or crime scenes for other serious crimes, as in Flippo v. West Virginia (528 U.S. 11 (1999)). In this case, the investigator said the death was “not normal,” but also testified “it was not a suspicious death.” Notwithstanding, the house was “secured” and Shrum was barred from entry. Shrum asked the court to suppress the evidence found during the entry to retrieve medication and from the ensuing warrant search.
The prosecution argued the police merely secured the house from the outside, at least until Shrum gave consent to enter for the purposes of retrieving medication. In Illinois v. McArthur (531 U.S. 326, (2001)), the Supreme Court upheld securing premises where officers: first, had probable cause to believe the house contained evidence of a crime; second, there was a reasonable belief the resident might destroy the evidence if allowed to enter before officers obtained a warrant; third, the officers made reasonable efforts to reconcile law enforcement needs with the demands of the resident’s personal privacy; and, fourth, the officers excluded the resident from the house for a limited time.
In this case, the court ruled it had “no difficulty” in determining the seizure of the home; excluding Shrum constituted an unreasonable seizure in violation of the Fourth Amendment.
The court also held the prosecution could not show the initial unlawful seizure of the house for over two hours was attenuated by the limited consent obtained after a lengthy interrogation. Thus, the evidence was tainted and could not be used against Shrum.
One wonders whether the outcome of the case would have been different if the home was “secured” against everyone other than the lawful resident. Shrum had expressed concern about his dogs left in the house. If the investigator had obtained consent to enter and to take the medication and walked in with Shrum, would he have still seen the open closet and ammunition? Probably. It is nearly certain the plain view observation of the ammunition could have resulted in a search warrant that would have allowed lawful seizure of the guns and drugs.